Justin Bieber: Legal Groundbreaker?—A Commentary by Adam Cohen

The following commentary was posted on Time.com on July 30, 2012

Justin Bieber: Legal Groundbreaker? By Adam Cohen

Justin Bieber is living the celebrity dream. It is not his platinum albums, his millions of worshipful “Beliebers,” or his estimated $55 million annual income at the ripe old age of 18. Last week he did something really big: he got a paparazzo arrested.

Celebrity photographer Paul Raef was allegedly part of a group of vehicles that followed Bieber on Los Angeles’ 101 Freeway July 6 at speeds of up to 80 m.p.h. What makes Raef’s arrest particularly notable: he is the first person to be charged under a new California law aimed at reining in celebrity photographers.

The law, AB 2479, carries tough penalties – including prison – for photographers who follow celebrities too closely by car or block sidewalks. Not surprisingly, it has a lot of support from Hollywood, but it should make people who care about freedom of speech uncomfortable.

Paparazzi have been hounding celebrities for a long time. The word – Italian dialect for a buzzing insect – was coined in the 1960 Frederico Fellini film “La Dolce Vita,” which had a news photographer character named Paparazzo. In the 1970s, Ron Gallela stalked Jacqueline Kennedy Onassis. In the 1980s and 1990s, packs of paparazzi followed Diana, Princess of Wales.

Diana’s death – in a car crash in Paris while being chased by photographers – was a wake-up call for many celebrities who began to fight back against the paparazzi culture. In 2010, AB 2479 was signed into law by Gov. Arnold Schwarzenegger, himself a frequent target over the years.

But it’s already a crime in California to willfully interfere with someone driving a car, to follow a car more closely than is reasonable and prudent, or to drive recklessly. AB 2479 upped the ante, making car chasing with the intent to photograph or sound record punishable by jail – as much as a year if there is a child in the car. The law also makes it possible to charge photojournalists with “false imprisonment” if they block the sidewalk.

It is not hard to see the good intentions behind AB 2479. The Diana and Bieber chases show how paparazzi can pose a risk not only to the celebrities they are following, but ordinary people who just happen to be driving nearby. But there is a real problem with AB 2479: it imposes extra punishment on journalists just for being journalists. The law more than doubles the punishment for reckless driving if it is with the intent to capture and image or sound recording – and the punishment is more than six times as heavy as normal when there is a child involved.

All this raises serious first amendment issues. Celebrity photographers stalking stars may not be the most sympathetic group. But AB 2479 does not just apply to them – it covers anyone trying to take a photograph or audio recording. That means a television news crew trying to get a scandal-plagued mayor to answer some questions could be arrested by the mayor’s own police force and threatened with prison. A journalist who waits outside a corporate headquarters to pose a question to the CEO could be charged with “false imprisonment.”

Play it out, and it all seems fairly Soviet Union pre-1991, especially since we are all photojournalists now – if we see something that does not look right, we can take out our smart phone and make a video recording. AB 2479 could turn a video of police brutality taken by an ordinary citizen into a jail sentence.

The press should not get special privileges – if they drive recklessly or put people in danger they should be subject to every reckless driving and endangerment law on the books—but they should also not be singled out for special punishment. Along with AB 2479, the photographer charged with following Bieber was accused of reckless driving and failing to obey a peace officer. Those are good, old-fashioned crimes that anyone can commit. Prosecutors should stick to those.

Cohen, the author of Nothing to Fear, teaches at Yale Law School. The views expressed are solely his own.